ADS General Terms and Conditions of Sale and Delivery

Arktis Detection Systems Inc, v. 05/17

1. General Provisions

1.1.  “ARKTIS” means Arktis Radiation Detection Systems Inc, 251 Little Falls Drive, Wilmington, DE 19808.  

1.2.  “Buyer” means the organization which is entering into the Agreement (as defined in Clause 1.2 below) for purchase of Equipment and/or Services from ARKTIS. 

1.3.  "Equipment" means all of the equipment, parts and accessories sold under the order.

1.4.  “Software” means all software and software documentation, if any, licensed to Buyer by ARKTIS under the order. 

1.5.  "Services" means all labor, supervisory, technical, engineering, installation, repair, consulting or other services (if any) provided by ARKTIS under the order.  

2. Conclusion of Contract

2.1. The terms and conditions contained herein, together with any additional or different terms contained in ARKTIS's Proposal (the “Proposal”), if any, submitted to Buyer (which Proposal shall control over any conflicting terms), constitute the entire agreement (the "Agreement") between the parties with respect to the order and supersede all prior communications and agreements regarding the order. Acceptance by ARKTIS of the order, or Buyer's acceptance of the Proposal, is expressly limited to and conditioned upon Buyer's acceptance of these terms and conditions. Buyer’s payment for or acceptance of any performance by ARKTIS constitutes acceptance of these terms and conditions. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Buyer without the prior written agreement of ARKTIS. Unless otherwise specified in writing, any Proposal expires thirty (30) days from the date thereof. 

3. Terms of Delivery

3.1.  All Equipment manufactured, assembled or warehoused in the continental United States is delivered F.O.B. (UCC) point of shipment, in packaging suitable for transportation. Equipment shipped from outside the continental United States is delivered F.O.B. (Incoterms 2010) United States port of entry. Buyer shall be responsible for any and all demurrage or detention charges.

3.2.  If the scheduled delivery of Equipment is delayed by Buyer or by Force Majeure, ARKTIS may move the Equipment to storage for the account of and at the risk of Buyer whereupon it shall be deemed to be delivered. 

3.3.  ARKTIS will use all reasonable endeavors to avoid delay in delivery on the notified dates of delivery. Failure to deliver by the specified date will not be a sufficient cause for cancellation, nor will ARKTIS be liable for any loss or damage due to delay in delivery unless liquidated damages are expressly stated in the order.  

3.4.  Claims for shortages or other errors in delivery must be made in writing to ARKTIS within ten (10) days of delivery.  Equipment may not be returned except with the prior written consent of and subject to terms specified by ARKTIS. Claims for damage after delivery shall be made directly by Buyer against the common carrier.

4. Prices

4.1.  Prices are net and do not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other similar taxes which may now or hereafter be applicable. Buyer agrees to pay or reimburse any such taxes which ARKTIS or its suppliers are required to pay or collect.  

4.2.  The price includes customs duties and other importation or exportation fees, if any, at the rates in effect on the date of ARKTIS’s Proposal. Any change after that date in such duties, fees, or rates, shall increase the price by ARKTIS's additional cost.

4.3.  Unless otherwise stated herein, prices for Services are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; holiday hours will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates are those set forth in the rate sheet. Rates are subject to change without notice.

4.4.  If the offer currency depreciates by more than 3% against the Swiss Franc (CHF) between the date of the Proposal and the date of conclusion of the Agreement, the price shall be increased by such percentage.

4.5.  ARKTIS shall also be entitled to adjust the price if during the extension of the delivery term due to any of the reasons stated in Clause 3.2, the monthly Swiss CPI has increased by more than three (3) per cent in which case the price shall be increased by such percentage or if ARKTIS incurs additional expense due to any of these reasons.

5. Payments

5.1.  Unless specified to the contrary in writing by ARKTIS, payment terms are net cash, payable without offset, in United States Dollars, 30 days from date of invoice by wire transfer to the account designated by ARKTIS in the Proposal.

5.2.  If in the judgment of ARKTIS the financial condition of Buyer at any time prior to delivery does not justify the terms of payment specified, ARKTIS may require payment in advance, may require payment security satisfactory to ARKTIS, or may terminate the order, whereupon ARKTIS shall be entitled to receive reasonable cancellation charges. If delivery is delayed by Buyer, payment shall be due on the date ARKTIS is prepared to make delivery. Delays in delivery or nonconformities in any installments delivered shall not relieve Buyer of its obligation to accept and pay for remaining installments.

5.3.  Buyer shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus ARKTIS's attorneys' fees and court costs incurred in connection with collection.

6. Retention of Title

Title to Equipment shall remain in ARKTIS until fully paid for.

7. Transfer of Risk

Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Buyer upon delivery.

8. Warranty & Liability

8.1.  Equipment and Services Warranty.  ARKTIS warrants that Equipment (excluding Software, which is warranted as specified in Clause 8.4 below) shall be delivered free of defects in material and workmanship and that Services shall be performed with reasonable care and skill. The Warranty Remedy Period for Equipment (excluding Software and spare parts) shall end twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of the relevant Services.

8.2.  Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to ARKTIS promptly after such discovery and within the applicable Warranty Remedy Period, ARKTIS shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or re-perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Equipment or Services. If any portion of the Equipment or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to ARKTIS promptly after discovery and within the original Warranty Remedy Period applicable to such Equipment or Services or 30 days from completion of such repair, replacement or re-performance, whichever is later, ARKTIS will repair or replace such nonconforming Equipment or re-perform the nonconforming Services. The original Warranty Remedy Period shall not otherwise be extended.  

8.3.  Exceptions. ARKTIS shall have no obligation hereunder with respect to any Equipment which (i) has been repaired or altered by a third party; (ii) has been subjected to misuse, negligence or accident; (iii) has been used in a manner contrary to ARKTIS's instructions or restrictions; (iv)  has failed as a result of ordinary wear and tear; and (v) has been transferred or installed in a location different from the initial site of installation.  Equipment supplied by ARKTIS but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will apply.

8.4.  Software Warranty and Remedies.  ARKTIS warrants that, except as specified below, the Software will, when properly installed, execute in accordance with ARKTIS's published specification. If a nonconformity to the foregoing warranty is discovered during the period ending ninety (90) days after the date of shipment and written notice of such nonconformity is provided to ARKTIS promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, ARKTIS shall correct the nonconformity by, at its option, either (i) modifying or making available to the Buyer instructions for modifying the Software; or (ii) making available at ARKTIS's facility necessary corrected or replacement programs.  ARKTIS shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Buyer-supplied software or interfacing.  ARKTIS does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Buyer, or that the Software is error-free or cannot be subsequently affected by external computer viruses.

8.5 ARKTIS warrants that the Equipment will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ("OSHA") and the regulations promulgated thereunder as of the date of the Proposal.  Upon prompt written notice from the Buyer of a breach of this warranty, ARKTIS will replace the affected part or modify it so that it conforms to such standard or regulation. ARKTIS's obligation shall be limited to such replacement or modification. In no event shall ARKTIS be responsible for liability arising out of the violation of any OSHA standards relating to or caused by Buyer's location, operation, or maintenance of the Equipment, its use in association with other equipment of Buyer, or the alteration of the Equipment by any party other than ARKTIS.

8.6.  ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS (STATUTORY, EXPRESS, IMPLIED OR OTHERWISE) AS TO QUALITY, CONDITION, DESCRIPTION, MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT (EXCEPT FOR THE IMPLIED WARRANTY OF TITLE) ARE HEREBY EXPRESSLY EXCLUDED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,  ARKTIS  HEREBY EXPRESSLY DISCLAIMS, AND BUYER HEREBY EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE EQUIPMENT INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS. 

9. Limitation of Liability

9.1.  IN NO EVENT SHALL ARKTIS, ITS SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, LOSS OF USE OF THE EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAYS, AND CLAIMS OF CUSTOMERS OF THE BUYER OR OTHER THIRD PARTIES FOR ANY DAMAGES.

ARKTIS's liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled "Patent Indemnity") exceed the purchase price allocable to the Equipment or part thereof or Services which gives rise to the claim.

9.2.  All causes of action against ARKTIS arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.

9.3.  In no event, regardless of cause, shall ARKTIS be liable for penalties or penalty clauses of any description or for indemnification of Buyer or others for costs, damages, or expenses arising out of or related to the Equipment and/Services.

9.4.  If Buyer resells any of the Equipment, the sale terms shall limit ARKTIS's liability to the buyer to the same extent that ARKTIS's liability to Buyer is limited hereunder.

10. Software

10.1.  ARKTIS owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Buyer under this Agreement. As part of the sale made hereunder Buyer hereby obtains a limited license to use the Software, subject to the following:  (i) the Software may be used only in conjunction with equipment specified by ARKTIS; (ii) the Software shall be kept strictly confidential; (iii) the Software shall not be copied, reverse engineered, or modified; (iv) the Buyer's right to use the Software shall terminate immediately when the specified equipment is no longer used by the Buyer or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software are non-exclusive and non-transferable, except with ARKTIS's prior written consent.

10.2.  Nothing in this Agreement shall be deemed to convey to Buyer any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software a "work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement.  In the event of termination of this License, Buyer shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to ARKTIS the Software and all copies thereof and shall remove all machine-readable Software from all of Buyer's storage media. 

11. Termination

No termination by Buyer for default shall be effective unless, within fifteen (15) days after receipt by ARKTIS of Buyer's written notice specifying such default, ARKTIS shall have failed to initiate and pursue with due diligence correction of such specified default.

12. Waiver

ARKTIS’s failure at any time to insist on performance of any provision of the Agreement is not a waiver of ARKTIS’s rights at any time later to insist on performance of that provision or any other provision.

13. Intellectual Property

13.1.  ARKTIS shall defend at its own expense any action brought against Buyer alleging that the Equipment or the use of the Equipment to practice any process for which such Equipment is specified by ARKTIS (a “Process”) directly infringes any claim of a patent of the United States of America and to pay all damages and costs finally awarded in any such action, provided that Buyer has given ARKTIS prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action on behalf of Buyer.

13.2.  ARKTIS shall have no obligation hereunder and this provision shall not apply to:  (i) any other equipment or processes, including Equipment or Processes which have been modified or combined with other equipment or process not supplied by ARKTIS; (ii) any Equipment or Process supplied according to a design, other than an ARKTIS design, required by Buyer; (iii) any patent issued after the date hereof; or (iv) any action settled or otherwise terminated without the prior written consent of ARKTIS.

13.3.  If, in any such action, the Equipment is held to constitute an infringement, or the practice of any Process using the Equipment is finally enjoined, ARKTIS will, at its option and its own expense, procure for Buyer the right to continue using said Equipment; or modify or replace it with non-infringing equipment or, with Buyer's assistance, modify the Process so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing Equipment.  THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF ARKTIS AND EQUIPMENT MANUFACTURER FOR ANY PATENT INFRINGEMENT.

14. Confidentiality

14.1.  Any design, manufacturing drawings or other information submitted to the Buyer remains the exclusive property of ARKTIS.  Buyer shall not, without ARKTIS's prior written consent, copy or disclose such information to a third party.  Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part. Unless otherwise agreed in writing by ARKTIS and Buyer, ARKTIS has all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services (even if they originated with the Buyer).  This clause survives termination of this Agreement for any reason.

15. Installation & Safety Information

15.1 Installation is not provided unless expressly agreed. When ARKTIS provides Installation, the additional terms and conditions in the Appendix apply (but not otherwise).

15.2.  Any inspection by Buyer of Equipment on ARKTIS's premises will be scheduled in advance to be performed during normal working hours.

15.3.  A factory acceptance test will be conducted in accordance with ARKTIS standard procedures.  ARKTIS will inform the Buyer at least seven (7) days prior to the scheduled date for the factory acceptance test.  The Buyer may choose to witness such factory acceptance test at its cost, provided it gives ARKTIS at least three (3) days’ notice of its intention to do so.  ARKTIS will issue a certificate recording the results of the factory acceptance test.  Successful completion of the factory acceptance test will constitute authorization for delivery of the Equipment.

16. Export Regulations

16.1.  The Buyer acknowledges that ARKTIS is required to comply with applicable export/import laws and regulations (including without limitation those of Switzerland, the United States of America, Canada, the United Kingdom and the European Union) relating to the sale, export, import, transfer, assignment, disposal and use of the Goods, including any export/import licence requirements. The Buyer must inform ARKTIS in advance of the location where the Equipment will be used and must inform ARKTIS immediately of any subsequent change of location. 

16.2.  The Buyer undertakes not to re-export the Equipment without (i) ARKTIS’s written consent and (ii) the requisite export license from the relevant body of the United Nations or other similar international organization, the United States Government, the country of origin or the original country of export. The requirement to obtain a license may vary depending on the country of destination, the end-user, the end use and other factors. Upon request from ARKTIS the Buyer shall furnish ARKTIS with copies of all documents relating to such re-export. 

16.3.  On ARKTIS’s written request, the Buyer must provide written evidence satisfactory to ARKTIS that the Equipment is in the Buyer’s possession and has not been exported. If ARKTIS has any concerns, acting reasonably, it shall have unrestricted rights to carry out an inspection at the location for the purpose of identifying the Equipment, at the Buyer’s cost. The Buyer shall indemnify and hold harmless ARKTIS from and against any claim, proceeding, fine, cost, loss or other damage arising out of or in connection with the Buyer’s noncompliance with export control regulations.

17. Changes

17.1.  Any changes requested by Buyer affecting the ordered scope of work are subject to acceptance by ARKTIS and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.

17.2.  ARKTIS may, at its expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable specifications.  If Buyer objects to any such changes, ARKTIS shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.

18. Force Majeure

ARKTIS shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control (“Force Majeure”) including, without limitation, acts of war (declared or undeclared), Acts of God, fire, flood, explosion, strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), acts of terrorism, power outages,  computer or other failure, acts or omissions of any governmental authority or of Buyer, compliance with government regulations, insurrection or riot, embargo or trade sanctions, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes.  In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate ARKTIS for such delay.

19. Miscellaneous

19.1.  ARKTIS may vary these Terms and Conditions of Sale without notice to the Buyer.

19.2.  If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.

19.3.  Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of ARKTIS shall be void.

19.4.  ARKTIS shall comply with US federal, state or local laws and regulations applicable to the manufacture of Equipment and its performance of Services. All laws and regulations referenced herein shall be those in effect as of the Proposal date.  In the event of any subsequent revisions or changes thereto, ARKTIS assumes no responsibility for compliance therewith.  Nothing contained herein shall be construed as imposing responsibility or liability upon ARKTIS for obtaining any permits, licenses or approvals from any agency required in connection with the supply, installation or operation of the Equipment or Software. If Buyer desires a modification as a result of any such change or revision, it shall be treated as a change in accordance with Clause 17.

19.5.  This Agreement constitutes the entire agreement between ARKTIS and Buyer. There are no agreements, understandings, restrictions, warranties or representations between ARKTIS and Buyer except those set forth herein or herein provided.

20. Applicable Law and Dispute Resolution

20.1.  This Agreement shall be governed by the laws of the State of New York, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding New York law with respect to conflicts of law.

20.2.  The parties agree that all disputes, claims or controversies arising out of or relating to the Agreement shall be first submitted to JAMS, or its successor, for mediation according to the following procedure:

  • 20.2.1. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. 
  • 20.2.2. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. 
  • 20.2.3. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. 
  • 20.2.4. Neither party may initiate court proceedings with respect to the matters submitted to mediation prior to the date of the initial mediation session or 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”) except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to comply with the requirements of Clause 20.2.2 above. 
  • 20.2.5. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
  • 20.2.6. Either party may commence legal proceedings at any time on or after the Earliest Initiation Date.  All causes of action against a party to the Agreement shall be brought in the State Courts of the State of New York, or the U.S. District Court for the Southern District of New York. 

 

Appendix to Arktis Terms and Conditions of Sale: Installation

Installation is only included if specifically agreed upon in the Agreement. The following additional terms and conditions shall apply, in addition to the ARKTIS Terms and Conditions of Sale.

1.      Additional Definitions

1.1.  “Acceptance Criteria” means the performance specification which is specified in the Agreement, or, if not so specified, ARKTIS’s published performance specifications or other relevant standard generally applied by ARKTIS (including any permitted variations and tolerances).

1.2.  “Installation” means unpacking, assembly as well as subsequent performance of the SAT. 

1.3.  “SAT” means the site acceptance test as defined in the Agreement, demonstrating that the Acceptance Criteria have been fulfilled using ARKTIS’s standard instruments and procedures.

1.4.  “Acceptance” of the installed Equipment (which is applicable only if Installation will be conducted by ARKTIS) occurs upon successful completion of the SAT.

2.    Site Activities

The Buyer shall be responsible at its own cost for making the site where the Equipment will be located ready for Installation in accordance with ARKTIS’s recommendations and providing adequate information and training to ARKTIS’s personnel (at no cost to ARKTIS) regarding safety at the site. Installation will not begin unless such responsibilities are completed. The Buyer shall, unless otherwise specified in the Agreement, at its own expense (i) follow any  reasonable recommendations of  ARKTIS  in connection  with  the Installation, (ii) provide electricity and other connections necessary for the Installation and operation. 

3.    Installation Personnel

ARKTIS will provide personnel to perform the Installation. The number of persons and their qualifications will be determined by ARKTIS.

4.    No Liability for Buyer Personnel and Property

To the maximum extent permitted by law, ARKTIS shall have no liability arising from or in connection with the acts or omissions of the Buyer’s employees or representatives.  ARKTIS shall not be liable for damage to or loss of components or any property during the Installation.

5.    Suspension

5.1.  In  the event  that the  Installation is  suspended due  to  reasons not  attributable to ARKTIS or outside of ARKTIS’s reasonable control including, without limitation: (i) lack or shortage of materials and/or utilities; (ii) Force Majeure; or (iii) any cause attributable to Buyer, and the suspension exceeds or is expected to exceed one full day, then ARKTIS has the right to withdraw its personnel from the site, or charge the Buyer for idle time spent at site. All costs in connection with such suspension or withdrawal due to circumstances not attributable to ARKTIS shall be borne by the Buyer. ARKTIS may resume the work after written notification to Buyer. In case the suspension exceeds or is expected to exceed 14 calendar days, the terms and conditions for the Installation shall be subject to re-negotiations.

6.    Acceptance of Installation

6.1.  ARKTIS will perform the SAT (Site Acceptance Test).

6.2.  If the SAT is not successfully completed, ARKTIS shall make such adjustments as it considers necessary, after which the parties shall repeat such SAT activities upon reasonable prior notice by ARKTIS to the Buyer. Only the test activities that have not been successfully completed will be repeated at this stage. 

6.3.  Buyer, at its reasonable request, shall be entitled to be present at and to witness the SAT. If Buyer fails to attend the SAT when advised that testing was to take place, Buyer is not entitled to object to testing carried out or to the recorded results thereof.

6.4.  The appearance of any defect or fault which does not adversely affect the operation of the Equipment for its basic intended purpose shall not obstruct  Acceptance, but ARKTIS shall be obliged to remedy  such  outstanding item after Acceptance without any undue delay.

6.5.  Upon the successful completion of the SAT, ARKTIS will issue a SAT certificate which shall be conclusive evidence of successful completion of the SAT, Installation and Acceptance. 

6.6.  In any event, Buyer agrees that Acceptance shall be deemed to have occurred at the earliest of (i) the date when the Test Certificate is  issued; (ii) in case ARKTIS shall have been delayed in performing the Installation for any reason other than its fault, 60 days after delivery of the Equipment; or (iii) the date on which the Buyer, without prior agreement with ARKTIS or in conflict with ARKTIS’s instructions, makes any use of the Equipment.